[Mona Khalil is a Legal Advisor with Independent Diplomat (ID) and formerly a Senior Legal Officer in the UN Office of the Legal Counsel; the views expressed herein are her own and do not necessarily represent the views of either ID or the UN. This post is a part of the Protection of Civilians Symposium.]
The protection of civilians (POC) mandate in UN peacekeeping was borne out of the failed UN mandates and genocidal massacres in Srebrenica and Rwanda. Since the first POC mandate was entrusted to UNAMSIL in 1999, the Security Council (UNSC) has consistently authorized UN peacekeeping operations (UNPKOs) with explicit POC mandates and with explicit Chapter VII authority to use force to fulfill that mandate. UNPKOs no longer lack the authority, and in fact have a responsibility, to protect civilians from threats of physical violence.
Despite the POC mandates’ intended message that, never again, would UN forces stand by while civilians are being massacred in their areas of deployment, both the UN Office of Internal Oversight Services and more recently the High-Level Panel on Peace Operations expressed serious concerns regarding the failure of UNPKOs to fulfill their POC mandate. The most recent events in Malakal and Juba in South Sudan tragically highlight these failures and underline these concerns.
Both the relevant UNSC resolutions and the applicable rules of engagement (ROE) confirm the authority to use force, up to and including deadly force, to protect civilians against physical violence and the threat thereof. Commanders and contingents alike have too often failed to exercise their authority or to fulfill their duties in this regard. Such failures may, at least in part, be attributable to the following legal considerations.
A. Confusion regarding the legal terminology of the POC mandate
Several parts of the standard formulation authorizing UNPKOs to use force to protect civilians have been the subject of differing interpretations in the field — including a degree of confusion and possible conflation of three related but distinct protection concepts: R2P, the protected status of civilians under IHL, and the POC mandate. While R2P is limited to genocide, war crimes, ethnic cleansing, and crimes against humanity, the POC mandate covers any and all forms of physical violence. While IHL imposes a negative obligation to avoid harming civilians, the POC mandate involves an affirmative responsibility to proactively protect them from harm. Moreover, while the proviso ‘within its capabilities and areas of deployment’ is intended to recognize the constraints on the ability of UNPKOs to deploy throughout the entire territory, the proviso has been misused as an excuse for unwilling military contingents to remain on their bases or in the immediate vicinity thereof fearing or failing to go to where the danger is.
B. Undue reliance on the primary responsibility of the host State
The phrase “without prejudice to the responsibility of the host Government” is intended to confirm that the UNPKO’s POC mandate does not relieve the host Government of its ultimate responsibility for the protection of civilians. While the POC mandate includes assisting host governments to fulfill their responsibility, it also requires UNPKOs to act independently when the host Government is unable or unwilling, and even to take action against host Government forces where and when they pose a threat to civilians. The POC mandate therefore applies “irrespective of the source of the threat”. The first explicit reference to this understanding of the POC mandate appeared in UNSC resolution 2155 (2014), which mandated UNMISS to protect civilians under threat of physical violence “irrespective of the source of such violence’. Accordingly, the UNMISS forces cannot rely on any such legal obstacle to explain their failure to protect civilians from South Sudanese government forces in Malakal and Juba.
C. Failure to respect the command authority of the UN Force Commander
Pursuant to the UN ROE, the Force Commander has command responsibility to order the necessary and permissible use of force to fulfill the POC mandate. To the extent that UN military contingents continue to be subject to their national command and exclusive criminal jurisdiction, however, many contingents and their commanders do not fully accept the unified command and operational control of the UN Force Commander.. The resulting dual lines of authority undermine the authority of the UN Force Commander, the responsiveness of national contingents to his or her orders, and ultimately the credibility and effectiveness of the UNPKO. National caveats imposed by the TCCs further undermine the unified command and impede the uniform application of the ROE.
D. Lack of accountability
Under the POC operational concepts and strategies, UNPKOs are intended to be constantly assessing threats and proactively taking measures to prevent, pre-empt or respond to those threats. The consistent reluctance or failure to use authorized force leads to escalation by virtue of the consequent perception that UN forces are unwilling or unable to act thereby undermining the UNPKO’s deterrent capacity and inviting further attacks against civilians as well as against the UNPKO itself. There has been little to no accountability for the failure of UNPKOs to fulfill their POC mandates or for the failure of UN Force Commanders to fulfill their command responsibility. Equally disturbing is the lack of accountability for failures to obey the UN Force Commander’s lawful orders when and where they are duly given.
E. Inhibition to use force arising from fear of losing protected status under IHL
A UNPKO may indeed become a party to an ongoing non-international armed conflict where and when it engages in sustained or intensive armed hostilities, whether acting in self-defense or in furtherance of the POC mandate. In reality, when peacekeepers are deployed to neutralize threats in operating environments were there is no peace to keep, the likelihood of that eventuality is exponentially increased. The eventuality becomes an inevitability where the mandate itself places the UN forces in direct opposition with named actors, as was the case with MONUSCO in the DRC.
F. Constraints arising from traditional principles of UN peacekeeping
Many TCCs often invoke the traditional principles of UN peacekeeping to avoid using force in a manner consistent with the demands of the POC mandate failing to recognize the evolving nature of UN peacekeeping and the related principles which have evolved with it.
Consent: Host country consent continues to be the primary distinction between peacekeeping and peace enforcement. While the Security Council must invoke Chapter VII in the operative paragraphs authorizing UNPKOs to use force beyond self-defence, by referring to Chapter VII in the chapeau of an establishing resolution, the Security Council obfuscates the fact that the UNPKO and its mandate are being established with the consent of the Government further blurring the distinction between UNPKOs and the Chapter VII enforcement operations.
Impartiality: To the extent that the POC mandate requires UN peacekeepers to protect civilians regardless of the source of the threat, as a matter of policy, the POC framework arguably upholds the principle of impartiality. As a matter of practice, however, the unwillingness or inability of UN forces to respond to clear violations by host government forces, as we have seen most recently in South Sudan, calls into question both the impartiality and the credibility of UNPKOs.
Self-defense: The inherent right of self-defence remains the primary basis for the use of force by UN peacekeepers and the use of force remains a last resort in carrying out the POC mandate. While the UNSC does not expect, and the levels of troops authorized do not allow, UNPKOs to prevent or respond to every threat within the territory, the UNSC, at a minimum, expects UNPKOs to act in the face of large scale and/or systematic attacks against civilians. Along with the mandate and authority given to them, the UN forces acquire a responsibility to use all necessary means including deadly force, to pre-empt, prevent, deter and/or respond to targeted or systematic attacks on civilians within their areas of deployment.
In addition to heinous acts of commission, including sexual exploitation and abuse by UN peacekeepers, which destroy the moral credibility of UNPKOs, acts of omission, such as the repeated failures to protect civilians from physical violence, undermine their operational credibility. More than fifteen years after the first explicit POC mandate was authorized by the UNSC, legitimate questions linger regarding UNPKOs readiness, willingness and ability to effectively carry out the POC mandate. While the willingness of TCCs to put their troops in harm’s way in the service of peace is noble, it cannot be taken for granted where and when such peace is absent or elusive. Nonetheless, POC is not only an explicitly mandated authority accorded to UN peacekeepers but also an affirmative duty expected from them.